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Broadcasting and Telecom Information Bulletin CRTC 2013-637

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Additional references: 2009-38 and 2009-38-1

Ottawa, 28 November 2013

Practices and procedures for staff-assisted mediation, final offer arbitration and expedited hearings

The Commission sets out revised procedures that apply to staff-assisted mediation, final offer arbitration and expedited hearings. These procedures build upon practices the Commission has adopted in the past. The purpose of the revisions is to reflect decisions set out in Regulatory framework relating to vertical integration, Broadcasting Regulatory Policy CRTC 2011-601, 21 September 2011, to reflect changes made to the Canadian Radio-television and Telecommunications Commission Rules of Practice and Procedure as they relate to the filing of confidential information, and to reflect certain organizational changes within the Commission.

The present information bulletin replaces Practices and procedures for staff-assisted mediation, final offer arbitration, and expedited hearings, Broadcasting and Telecom Information Bulletin CRTC 2009-38, 29 January 2009, as amended by Broadcasting and Telecom Information Bulletin CRTC 2009-38-1, 26 April 2010.

Introduction

1. The Commission considers it important to have in place well-designed and timely dispute settlement mechanisms for broadcasting and telecommunications matters that come under its regulatory purview.

2. This bulletin sets out, for both broadcasting and telecommunications matters, the procedural steps to be followed and the time limitations that will apply to each of the following: a) staff-assisted mediation, b) final offer arbitration, and c) expedited hearings (collectively, the dispute resolution processes).[1] these procedures build upon those that the commission has adopted in the past.[2]

3. This bulletin will be the effective instrument regarding Commission procedures for the dispute resolution processes in disputes arising under either the Broadcasting Act or the Telecommunications Act. To ensure clarity, this bulletin replaces and supersedes earlier guidance regarding dispute resolution provided by the Commission in the information bulletins, public notices and circulars listed in Appendix 1 to this document. However, two aspects of Public Notice 2000-65 remain in effect: the procedure relating to “staff opinions,” which is set out in paragraph 12 of that public notice, and the procedure relating to “consensus-based problem-solving,” which is set out in paragraphs 15 to 17 of that public notice. These procedures are included in Appendix 2.

General information

4. Disputes that involve one issue – or in exceptional cases, several closely related issues – and have the following characteristics will lend themselves to the Commission’s dispute resolution processes:

5. Disputes for which resolution would effectively establish a new policy or change an existing policy will not be considered suitable for the dispute resolution processes. In addition, those disputes that involve a large number of issues or interested parties will not generally be considered suitable for these processes. In these instances, the Commission will rely on other redress mechanisms for resolving disputes.

6. This bulletin reflects the procedures for bilateral disputes. Where more than two parties are involved, the provisions of this bulletin are to be read effectively to accommodate that fact – except in the case of final offer arbitration, where only two parties can participate.

7. Where the Commission is not legally required to be involved, parties may resolve their differences through private third-party mediation or arbitration, bilateral negotiations, or other means without Commission participation. The Commission encourages parties to attempt to exhaust these means to resolve outstanding issues in an efficient and effective manner before applying for the dispute resolution processes pursuant to this bulletin.

8. The Commission generally expects that parties will have made reasonable efforts to resolve their dispute prior to requesting final offer arbitration or an expedited hearing. As a result, the Commission may require parties to engage in mediation before it accepts the matter for dispute resolution.

9. If the Commission denies a request for final offer arbitration or an expedited hearing, it will advise the parties involved and it may, where appropriate, suggest or initiate a different redress mechanism.

10. Deadlines for filing materials and other time frames set out within this bulletin are firm but may be varied by the Commission upon application.

11. Both programmers and broadcasting distribution undertakings are to provide continued access to programming services and carriage during an ongoing dispute.

Practices and procedures

a) Staff-assisted mediation

12. Staff-assisted mediation is the method of dispute resolution in which Commission staff assist parties in dispute to reach a consensual resolution of the issues. Where full resolution cannot be achieved, the objective of Commission staff will be to reduce the number of contentious issues in order to clearly identify those that may require further Commission intervention. In staff-assisted mediation, any resolution is non-binding.

13. Staff-assisted mediation is best suited to dispute situations that meet the criteria outlined in paragraph 4. It can also be effective in multilateral situations involving parties with like interests. As noted above, the Commission may require parties to engage in mediation, such as staff-assisted mediation, before it accepts a matter for dispute resolution.

14. Any party may request staff-assisted mediation by making a written or verbal request to Commission staff in confidence. Commission staff will establish whether the particular matter is appropriate for mediation. In the event that it is not, staff will deny the request and may suggest that it be dealt with through a different redress mechanism.

15. Staff-assisted mediation may be conducted by Commission staff through direct telephone conversations, conference calls, in-person meetings, or a combination of these methods. During mediation, Commission staff will assist parties in arriving at a consensual resolution by facilitating communication and exchanges, and by focusing the parties on the issues at hand. As it is generally in the best interests of the parties to advance in a timely manner towards resolving the dispute or components of the dispute, Commission staff will establish time limitations – as long as mediation continues to progress. Commission staff may extend these time limitations as required. Should it become apparent that mediation is ineffective, Commission staff will end the mediation process.

16. When a staff-assisted mediation process has been terminated without resolution of all issues, Commission staff may, if all parties agree, issue a Staff Mediation Report identifying outstanding issues. That report, with the consent of all parties, may form part of the record for consideration in final offer arbitration, an expedited hearing, or another Commission proceeding on issues identified in the report.

b) Final offer arbitration

17. Final offer arbitration is the method of dispute resolution used for disputes that are exclusively monetary, involve only two parties, and meet the criteria outlined in paragraph 4. It may be used when the parties involved have failed to resolve the dispute through staff-assisted mediation. A Commission panel will act as arbitrator and will choose between the final offers put forward by the parties. Final offer arbitration will result in a binding determination.

18. Either party (the applicant) may request final offer arbitration by filing a written application with the Commission and serving it on the other party (the respondent). The application must set out the matter(s) for which a determination by the Commission is requested, include a concise statement of the facts and issues, and explain why the application meets the criteria for final offer arbitration.

19. Within five days of the respondent having received a copy of the application, the respondent must advise the Commission as to whether it supports the application for final offer arbitration regarding the specific matter(s) and serve this advice on the applicant.

20. The Commission, having conducted any conference calls or exchanges of correspondence with the parties that it considered appropriate, will advise the parties within 15 days of receiving the application for final offer arbitration whether it is prepared to accept the request for a final offer process.

21. Should the Commission accept the application for final offer arbitration, it will set out in an advice letter to the parties the specific dates upon which the final offer process is to be conducted and the matter(s) upon which it will make a determination. The Commission’s establishment of the disputed matters ensures that the parties will be submitting comparable offers.

22. Within 15 days of the date upon which the parties are notified by the Commission of its conduct of the final offer process, each party must submit its final offer to the Commission. These submissions must be in reference to the disputed matters upon which the Commission will make a determination. They must also include concise supporting arguments stating all the facts, Commission requirements, and regulatory decisions, and, if applicable, decisions of the Courts relied upon, in support of a party’s respective position. These submissions must be no longer than ten pages. The parties may file, as an attachment, a copy of any written material upon which they rely, except Commission determinations, tariffs, tariff filings, and other documentation published by the Commission.

23. Within five days of the date upon which the final offer submissions of the parties have been received by the Commission, and upon confirmation that both offers respond to the identified disputed matters, the Commission will forward to each of the parties a copy of the other party’s offer. Each party will be given an opportunity to comment on the other party’s offer but will not be able to change its original offer. These commenting documents must be submitted by each party to the Commission within five days of each party having received the offer of the other party and may be no longer than ten pages.

24. In regard to broadcasting disputes, after the close of the record (usually within a week) and pursuant to the Commission’s regulations,[3] the Commission may require parties to participate in a mediation before a person appointed by the Commission.

25. After the Commission arbitration panel selects one or the other of the offers in its entirety, the Commission will issue its decision. The Commission intends to release final offer arbitration decisions within 55 days of having accepted a request for final offer arbitration, in those cases where parties have met their filing obligations.

26. Only on a very exceptional basis, where neither party’s final offer is, in the opinion of the Commission, in the public interest, both final offers will be rejected by the Commission and the parties involved will be so advised. In this event, the Commission may refer the matter to an expedited hearing.

c) Expedited hearing

27. An expedited hearing is the method of dispute resolution used for those disputes that meet the criteria outlined in paragraph 4, provided that the nature of the dispute is not exclusively monetary. It may be used when the parties involved have failed to resolve the dispute through staff-assisted mediation. The Commission will award the relief requested, in whole or in part, if it finds in the applicant’s favour. Under this method of dispute resolution, the Commission will establish Commission panels to conduct brief oral hearings.

28. Either party (the applicant) may request an expedited hearing by filing a written application with the Commission and serving it on the other party (the respondent). The application must set out the matter(s) for which a determination by the Commission is requested, include a concise statement of the facts and issues, and explain why the application meets the criteria for an expedited hearing.

29. Within five days of the respondent having received a copy of the application, the respondent must advise the Commission as to whether it supports the application for an expedited hearing regarding the specific matter(s) and serve this advice on the applicant.

30. The Commission, having considered any advice received from the respondent, will advise the parties by letter within 20 days of receiving the application for an expedited hearing whether it is prepared to accept the request. Should the Commission accept the application for an expedited hearing, it will set out in its advice letter to the parties the specific dates upon which the expedited hearing is to be conducted and the matter(s) upon which it will make a determination.

31. Within 15 days of the Commission having accepted a request and notified the parties, the respondent must file a response to the application with the Commission. The response must include a concise statement of the facts and issues, and the respondent must serve the response on the applicant.

32. All applications requesting expedited hearings and response submissions must include concise supporting arguments stating all the facts, Commission requirements, and regulatory decisions, and, if applicable, decisions of the Courts relied upon, in support of a party’s respective position. All applications must also include a concise statement of the relief sought. These documents must be no longer than ten pages. The parties may file, as an attachment, a copy of any written material upon which they rely, except Commission determinations, tariffs, tariff filings, and other documentation published by the Commission. The Commission will not accept the filing of additional documents at the hearing, except upon specific leave.

33. In regard to expedited hearings involving broadcasting disputes, after the close of the record (usually within a week), and pursuant to the Commission’s regulations, the Commission may require parties to participate in a mediation before a person appointed by the Commission.

34. Where the Commission has accepted an application for an expedited hearing, parties will be required to attend a brief oral hearing, to which they will be required to bring all relevant documentation and knowledgeable personnel. An adverse inference may be drawn from the failure of a party to bring all relevant documentation and knowledgeable personnel to the oral hearing.

35. The Commission may, at any time, require that one or both of the parties file further information before or at the oral hearing.

36. At the beginning of the hearing, each party will be given a brief opportunity – generally ten minutes – to address the panel. The Commission panel and Commission counsel will then question the parties, after which the parties will have an opportunity to question each other – generally for 20 minutes each. Finally, each party will be given another brief opportunity – generally ten minutes – to address the panel, following which the oral hearing will conclude. The Commission may modify hearing procedures as circumstances require.

37. The Commission intends to release its expedited hearing decisions within 70 days of having accepted a request for an expedited hearing, in those cases where the parties have met their filing obligations and where no adjournment has been extended in the oral hearing.

38. Hearings will generally be held in Salon Réal Therrien on the 7th floor of the Central Building, Les Terrasses de la Chaudière, 1 Promenade du Portage, Gatineau, Quebec.

Confidentiality

39. All information and materials submitted by the parties in the course of staff-assisted mediation, as well as the existence of such mediation and all discussions in the course of such mediation, will be confidential and will not be disclosed by the parties or the Commission and may not be used by any of the parties in subsequent proceedings before the Commission. As noted in paragraph 16, if all parties agree, the Commission may issue a Staff Mediation Report identifying issues remaining for resolution. That report, with the consent of all parties, may form part of the record for consideration in another Commission proceeding on issues identified in the report.

40. For final offer arbitration and expedited hearing proceedings, the Commission’s existing confidentiality rules and practices will apply, as set out in the Canadian Radio-television and Telecommunications Commission Rules of Practice and Procedure (the Rules of Procedure) and described in Broadcasting and Telecom Information Bulletin 2010-961.

41. Where a party files information with the Commission in confidence, the party must file an abridged version of the document for the public record along with an explanation of how the information falls into a category of information listed in section 31 of the Rules of Procedure. The party must provide a detailed rationale to explain why the disclosure of the information is not in the public interest (subsection 32(1) of the Rules of Procedure).

42. Information filed with the Commission will be placed on the public record unless the party filing the information designates the information as confidential at the time of filing. If the Commission or another party believes that the designated information should be made public pursuant to the test for disclosure, the Rules of Procedure set out a process to be followed. The Commission may disclose or require the disclosure of information designated as confidential if it does not properly fall within one of the categories of information that can be designated confidential (subsection 31(1) of the Rules of Procedure) or if it was properly designated confidential but disclosure is in the public interest (subsection 34(1)). Where the Commission has determined that the information should be disclosed, the party may be required to file a revised abridged version of the document.

43. In regard to broadcasting matters, an applicant who filed information that the Commission has determined should be disclosed may choose to confirm that it continues to oppose disclosure of the information. In this case, the Commission will not disclose or require the disclosure of the information. However, the information is no longer admissible as evidence and the Commission will not consider it in making its decision (subsection 34(2) of the Rules of Procedure).

44. Consistent with its determinations set out in Broadcasting Regulatory Policy 2011-601, the Commission will publish the determinations of all applications for final offer arbitration or expedited hearing relating to broadcasting matters. Parties will be provided with an opportunity to redact from the decision sensitive information that has been designated confidential.

Additional consideration for disputes relating to telecommunication matters

45. In addition to the considerations outlined above, requests by parties for final offer arbitration will be considered in light of the following: as a condition to proceeding to the final offer arbitration process, where both parties request that process, they will be expected to agree not to apply under section 62[4] of the Telecommunications Act for a review and variance of the decision resulting from the final offer arbitration. In the Commission’s view, removing the prospect of a review and vary application will help to ensure that parties have the requisite incentive to submit reasonable final offers. Accordingly, the Commission considers that this condition relating to the final offer arbitration process is reasonable and necessary to improve the efficiency and effectiveness of the dispute settlement mechanisms available to parties.

Timing of new practices and procedures

46. The above-referenced practices and procedures will be effective as of the date this bulletin is issued.

Filing of documents

47. To the extent possible, all documents should be filed electronically via the Commission’s website at www.crtc.gc.ca. Parties are to clearly indicate in the first paragraph of their application whether their request is for staff-assisted mediation, final offer arbitration, or an expedited hearing.

Secretary General

Related documents

Appendix 1 to Broadcasting Information Bulletin CRTC 2013-637

The present information bulletin replaces and supersedes guidance regarding dispute resolution provided by the Commission in the following documents:

Appendix 2 to Broadcasting Information Bulletin CRTC 2013-637

The following procedures, set out in Practices and procedures for resolving competitive and access disputes, Public Notice CRTC 2000-65, 12 May 2000, remain in effect:

Staff-assisted opinion

12. In some instances, all that may be needed is some assistance from Commission staff over a period of a few hours or days to break an impasse. In other situations, parties may not be able to make progress in their negotiations, and may require a staff opinion or other assistance. Where a staff opinion is requested, the Commission’s objective is that, wherever possible, such an opinion would be released within 60 days of the date of receipt of the request. Generally, the more complex or technical a dispute, the more likely it is that at least some type of informal or formal oral phase (including meetings between the parties) will be required. Written submissions from the parties may not be sufficient to enable Commission staff to prepare a comprehensive opinion. In such circumstances, the 60-day objective may have to be extended.

Model 2: Consensus-based problem solving

15. This model contemplates staff-facilitated meetings involving participation in a working group by a broad cross section of industry representatives and other interested parties. The working group’s purpose would be to find solutions to broad problems of a technical, operational or administrative nature, and perhaps industry-wide in scope, rather than to resolve disputes arising between individual parties. This model has been used successfully by the CRTC Interconnection Steering Committee (CISC) to address issues regarding the implementation of local telephone competition.

16. The working group would generally investigate an issue, determine the facts and propose a solution in a consensus report that would then come before the Commission for approval. Although such a process need not involve Commission approval of the reports, participants in past CISC forums of this nature have generally sought such approval to give additional status to the results of their extensive work.

17. Typically, under this process:

Footnotes

[1] These procedural steps and time limitations may be modified by the Commission in a particular case, as circumstances require.

[2] The Commission has consistently sought to implement practices and procedures that bring about the timely resolution of issues arising under the Broadcasting Act and the Telecommunications Act. For example, the Commission's central objective in issuing Public Notice 2000-65 was to allow it to reach determinations regarding competitive disputes as expeditiously as possible. In Telecom Circular 2004-2 and in Broadcasting Circular 2005-463, the Commission implemented measures regarding the conduct of Commission expedited public hearings.

[3] This requirement is set out in subsection 12(4) of the Broadcasting Distribution Regulations, subsection 6.4(2) of the Pay Television Regulations, 1990, subsection 10.4(2) of the Specialty Services Regulations, 1990, and subsection 17(2) of the Television Distribution Regulations, 1987.

[4] Section 62 of the Telecommunications Act states that the Commission may, on application or on its own motion, review and rescind or vary any decision made by it or re-hear a matter before rendering a decision.

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